The Federal Communications Commission (FCC) is considering opening another front in robocalling enforcement by declaring “ringless voicemails” subject to consumer consent and other requirements under the Telephone Consumer Protection Act (TCPA). Ringless voicemails deliver messages directly to wireless users’ voicemail boxes without ringing their devices. Proponents of the technology have long argued that such messages fall outside the TCPA because no “call” actually is made to the consumer. But the FCC appears ready to reject that argument, announcing on February 2, 2022, that it is considering an order clarifying that ringless voicemails represent calls subject to TCPA robocalling restrictions.

The FCC’s recent announcement leaves many questions unanswered, including whether the agency intends to apply its order retroactively — which could lead to significant fines and lawsuits despite the recent guidance from the United States Supreme Court in Facebook v. Duguid. As a result, this announcement deserves close attention from financial services institutions and others that used ringless voicemail campaigns to reach consumers, both now and in the past.

The TCPA generally prohibits making any “call” to a wireless number using an auto dialer or artificial/prerecorded voice without the prior express consent of the called party. But the TCPA does not define what constitutes a call, and as a result, this definition has historically led to industry confusion and significant litigation risk. Interestingly, the FCC’s proposed order comes in response to a nearly five-year-old petition from a voicemail delivery service, which asked the agency to declare ringless voicemails exempt from TCPA restrictions or alternatively grant a retroactive liability waiver. In that petition, the company argued that the TCPA does not apply to direct-to-voicemail messages because they do not ring cell phones or result in consumer charges. The company therefore claimed that ringless voicemails do not pose the same consumer harms as other robocalls subject to the TCPA. It also argued that ringless voicemails are not an FCC-regulated telecommunications service at all, but rather an enhanced “information” service outside the agency’s jurisdiction.

Until the FCC finalizes and approves its upcoming order, it is unclear how it plans to take on these arguments. The agency likely will act on the order in the next few months, but that timeline could get pushed back if the confirmation of a fifth FCC commissioner is further delayed. However, the FCC’s announcement appears to make clear that it views ringless voicemails as posing the same annoyance and fraud risks as other robocalls, warranting similar treatment under the TCPA. Also unclear is whether the FCC plans to apply the proposed order retroactively to cover prior ringless voicemail campaigns. Financial services industry participants and other businesses have reason to be concerned here as, while the FCC imposes new rules prospectively, it regularly applies clarifications of existing rules retroactively. This presents a substantial liability risk, as some of the largest fines in FCC history concern robocalling violations. These fines have previously totaled hundreds of millions of dollars and have also sparked follow-on class action litigation.

With such high stakes, it is important to note that the financial services industry (and other businesses) are not without some degree of recourse here. Companies utilizing ringless voicemail campaigns may consider reaching out to the FCC in the near-term about the proposed order’s potential impact before its adoption.

Stay tuned as we will be tracking FCC action on the proposed order and providing an update when it is released.